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Leak-plugging or Re-piping?

The September 27, 2008 editorial of the Philippine Daily Inquirer entitled “Plugging the Leak” gave us an insight on some of the realities surrounding the budget process of the country. It implied that while the “power of the purse” remains with the Congress, the “power over the contents of the purse”, the way and how much should be spent where, still remains with the President.

The editorial postulates that the problems affecting the budget process can be minimized or even eradicated if the Congress will provide conditions for budget spending such as ‘disallowing the use of “savings” for rankly political purposes’. But while this idea is legally feasible, the innovations made by the present administration in controlling the whole budget process from planning to execution has made the existing laws obsolete and even inutile particularly on the aspect of checks and balances.

For instance, while the Congress has the power to appropriate the resources of the government, it is still the President who has the first say on where and how much money should be spent. This is through the executive branch’s budget proposals which signals the start of the budget hearings in the Lower House. Though the Congress is allowed by the Constitution to decrease the proposed budget, it never possessed the corollary right to increase the same despite the fact that the legislative branch is not lacking in power to conduct inquiries (including budget inquiries) in aid of legislation. Worse, in case of disagreements between the two branches, the President can always propose item vetoes which can even lead to the restoration of the original budget items especially if the legislative chamber failed to acquire the numbers to override the veto.

Second, while the Congress has the power over the purse, releasing the contents of the purse is still within the ambit of the powers of the President. This is specifically provided by Section 34, Book V of the Administrative Code (E.O. 292) which states that the President can determine the policies, rules and regulations for the release of funds of the different agencies of the government. In simple terms, the President can be either be lax or rigid in releasing the funds appropriated by the Congress – a power which the Chief Executive can dangle to control the members of the legislative branch. For this reason, opposition Congressmen find it hard to get their share of pork as the barrel is being held by the Chief Executive.

There are claims that the executive control over the “contents of the purse” is unconstitutional. Said claims had been debunked by the Supreme Court in the case of Philconsa vs. Enriquez (G.R. No. 113105. August 19, 1994) when it upheld the validity of the impoundment powers of the President. Impoundment, the high tribunal said, is the “refusal by the President, for whatever reason, to spend funds made available by Congress.” It is based on three sources namely: (1) The authority to impound given to the President either expressly or impliedly by Congress, (2) The executive power drawn from the President’s role as Commander-in-Chief, and (3) The Faithful Execution Clause which mandates the Chief Executive to implement the laws enacted by the Congress.

The power to impound is also clearly stipulated in the Administrative Code specifically in Book VI, Section 38. Hence, the legal bases.

Given these, it is therefore appropriate to say that the problem does not only revolve on the issue of the Presidential power over the savings but around a system involving the budget process. While the idea of encouraging the Congress to pass laws that will serve as a check the executive department with regards the management of the government’s budget is a notable one, it is just like “plugging a leak”, to borrow the term, from a system that needs a total “re-piping”. And to do this, the first thing to start with is to amend the whole Administrative Code which provides the structure and bases for the operations of the government. But of course, the idea of amending the Constitution which the editorial considers as “not necessary” and “may not even be wise” should not also be set aside. In the very first place, it is the fundamental law which lays out the foundation for all the systems that the government is using and provides the basis of the legitimacy of all actions of the people running the government.###

(This article also appears in the column “The Sidelines” in the newspaper, Albay Journal.)